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Judgment
B. Manohar, J—The petitioners in these writ petitions have sought for quashing the endorsement dated 2-6-2015 issued by the Hubli-Dharwad Urban Development Authority, rejecting their applications seeking for change of land use, i.e., permission to use the lands for residential purposes, though it falls under agricultural zone (Green Belt Area).
Since common question of law and facts are involved in these writ petitions, they are taken up together and disposed of by this common order.
The facts in W.P. Nos. 105400-105402/2015 are referred to, for the sake of convenience.
The petitioners are the owners of lands bearing Sy.No.80/2 measuring 4 acres 34 guntas, situated at Tadasinakoppa village of Dharwad Taluk. The said lands were designated as agricultural zone (Green Belt Area) in the Master Plan prepared under the Karnataka Town and Country Planing Act, 1961 (hereinafter referred to as the Act'', for short), and the same was published on 20th November 2003 in Part VI of Karnataka Gazette. Petitioners applied to the 2nd respondent seeking permission for use of the said lands for residential purpose since the designation of petitioners'' lands as agricultural zone had elapsed in view of provision of Section 69(2) of the Act.
The case of the petitioners is that if a land is designated under the Act and the same is not acquired for the designated purpose within a period of five years, it shall be deemed to have been lapsed and the owner of the land gets a right to use his land for his own purpose. Further the Government, by its Circulars dated 22.12.2005 and 06.03.2010 has clarified that if the authorities fail to acquire the land designated in the Master Plan for the purposes stated in Section 12 of the Act, within five years from the date of such designation, such designation will lapse and permission shall be accorded for the use as desired by the land owners. Petitioners have also contended that the 2nd respondent itself has granted permission to various other land owners for change of land use i.e., for residential purposes though it falls under agricultural zone. They also relied upon the order of this Court passed in W.P. No. 111415/2014 and connected matters, wherein this Court has held that if the authorities fail to acquire the designated land within a period of five years of the publication of the notification, the designation lapses. Hence, the 2nd respondent has to consider the applications of the petitioners for use of land for residential purposes. The rejection of the applications filed by the petitioners is contrary to law since the issue raised in these writ petitions is covered by earlier order passed by this Court. Hence, the petitioners have sought for quashing the impugned endorsements. Learned counsel for the petitioners in support of the their contention has relied upon a decision of the Hon''ble Supreme Court reported in Hasmukhrai V. Mehta Vs. State of Maharashtra .
Smt. K. Vidyavathi, learned Additional Government Advocate appearing for respondent No. 1 and Shri G.I. Gachchinamath and Shri R.H. Angadi, learned advocates appearing for other respondents argued in support of the order passed by the 2nd respondent and contended that there is no infirmity or irregularity in the endorsements issued by the 2nd respondent. Section 69(2) of the Act is not applicable to the facts of the present case. The endorsement issued by respondent No. 2 clearly discloses that the petitioners'' lands fall within the ambit of agricultural zone. Section 69(2) read with Section 12 of the Act makes it very clear that if the designated land, except land specified for the purpose in clause (b) of sub-Section (1) of Section 12, is not acquired by agreement within five years from the date, the Master Plan is published in the gazette under sub-Section (4) of Section 13, the designation lapses and the land owner can use lands for other purposes. In the instant case, petitioners'' lands fall under agricultural zone. For the lands falling under Section 12(1)(a) of the Act, Section 69(2) of the Act is not applicable. The authorities below, after examining the matter in detail have issued a speaking order. There is no infirmity or irregularity in the said order. The judgment relied upon by the petitioners is not applicable to the facts of the present case since, Sections 12 and 69(1) of the Act are not considered in the said judgment. Further, the Government has power to grant permission for change of land use under Section 14-A of the Act and not under Section 69(2) in respect of the land falling under Section 12(a). Hence, the government order referred to in the writ petitions is not applicable to the facts of the present case and sought for dismissal of the writ petitions.
I have carefully considered the arguments addressed by the advocates appearing for the parties and perused the impugned orders and other relevant records.
The case of the petitioners is that if the designated land as notified in the master plan is not acquired within a period of 5 years, such designation lapses and the land owners get a right to use the land according to their wishes, whereas it is the case of the respondents that Section 69(2) of the Act is not applicable to the lands falling under Section 12(1)(a) of the Act. Therefore, before proceeding further, it is appropriate to refer to the relevant provisions of Sections 12 and 69 of the Act applicable to the facts of this case, which read as under:
"12. Contents of Master Plan.- (1) The Master Plan shall consist of a series of maps and documents indicating the manner in which the development and improvement of the entire planning area within the jurisdiction of the Planning Authority are to be carried out and regulated, such plan shall include proposals for the following, namely:-
(a) zoning of land use for residential, commercial, industrial, agricultural, recreational, educational and other purposes together with Zoning Regulations;
(b) a complete street pattern, indicating major and minor roads, national highways, and state highways, and traffic circulation pattern, for meeting immediate and future requirements with proposals for improvements;
(c) areas reserved for parks, playgrounds, and other recreational uses, public open spaces, public buildings and institutions and area reserved for such other purposes as may be expedient for new civic developments;
(d) areas earmarked for future development and expansion;"
"69. Acquisition of land designated for certain purposes in a Master Plan.- (1) The Planning Authority may acquire any land designated in a Master Plan for a specified purpose in clause (b), (c) or (d) of sub-section (1) of section 12, or for any public purpose out of those specified land in clause (a) of sub-section (1) of section 12 by agreement or under the Land Acquisition Act, 1894 (Central Act I of 1894) as in force in the State. If the land is acquired under the Land Acquisition Act, 1894, the provisions of said Act as amended by section 72 of this Act shall apply to the determination of compensation for the acquisition of such land.
(2) If the designated land, except land specified for the purpose in clause (b) of sub-section (1) of section 12, is not acquired by agreement within five years from the date, the Master Plan is published in the gazette under sub-section (4) of section 13 or if the proceedings under Land Acquisition Act are not commenced within such period the designation shall be deemed to have been lapsed.
A conjoint reading of Section 12 and Section 69 of the Act makes it clear that the planning authority may acquire any land designated in the master plan for the purposes specified in clauses (b), (c) or (d) of sub-section (1) of Section 12 or for any public purpose out of those specified land in clause (a) of sub-Section (1) of Section 12 of the Act, by agreement or under Land Acquisition Act, 1984. Sub-section (2) of Section 69 of the Act provides that if the designated land, except the land specified for the purpose of clause (b) of sub-section (1) of Section 12 is not acquired by agreement within 5 years from the date the master plan is published in the Gazette under subsection (4) of Section 13 of the Act or if the proceedings under the Land Acquisition Act is not commenced within such period, the designation shall be deemed to have been lapsed. A harmonious reading of Section 69(1), 69(2) and Section 12 of the Act gives a clear idea of intendment of the Act. The discretion to acquire any land designated in a master plan for specified purpose in clauses (b), (c) or (d) of sub-Section (1) of Section 12 or for any public purpose in respect of those lands specified under Section 12(1)(a), either by way of agreement or under the Land Acquisition Act, stands vested with Planning Authority. Hence for those categories of land specified in Section 12 (1)(a) of the Act, the ear-marking should be for public purpose and if the same is not designated as public purpose, then Section 69(2) is not attracted. A reading of the above provisions makes it very clear that only those lands which fall under clauses (c) and (d) of Section 12(1) of the Act, Section 69(2) is applicable and not otherwise. In case of those lands, which fall under the zoning regulation under Section 12(1)(a) of the Act, if the land owner wants change of land use, he has to make an application under Section 14A of the Act and fulfill the conditions imposed thereunder. Admittedly, the lands belonging to the petitioners herein fall under Agricultural Zone (Green Belt Area). For those lands, the Government need not acquire for orderly development of area in question, which the authorities have published in comprehensive development plan. Those lands have to be preserved as Green Belt Area, for orderly development of cities. Only on fulfilling the conditions imposed under Section 14A of the Act, change of land use from the master plan can be granted by the Planning Authority with approval of the State Government after following the procedure prescribed in the Act and not by the 2nd respondent. The petitioners have not made an application under Section 14A of the Act for change of land use. Their case is that since the designated land is not acquired within a period of 5 years, they are entitled to use the land for residential purposes. The petitioners are relying upon some Government Circulars dated 02.12.2005 and 06.03.2010 issued by the State Government, wherein it was made clear that those lands falling under clause (c) of Section 12, after lapse of 5 years, if the land is not acquired by the authorities, the petitioners have got right to use for the purpose they intend. However, in the said notification it was made clear that if the land falls under residential zone or park and open space, the petitioners shall not put up any industries in the midst of residential layout or park or playground. The notifications issued by the State Government is not applicable to the case of the petitioners. Further, the petitioners in those petitions have been granted permission to change the land use under Section 14A of the Act on an application filed by them and after following the procedure prescribed under Section 14A of the Act. Hence, the petitioners cannot plead that the Government has permitted the change of land use. The change of land use has been granted under Section 14A of the Act and not under Section 69(2). In the judgment relied upon by the petitioners, this court has not considered the provisions of Sections 12 and 69(1) of the Act whereas this Court has examined Section 69(2) and held that if the designated land is not acquired within a period of 5 years, the petitioner gets right to seek for change of land use and the authority has to consider the request for change of land use. In fact, a similar order has been made in W.P. No. 84022/2013 and W.P. No. 77037/2013. Pursuant to the direction issued by this Court, the case of the petitioners has been considered by the authorities with reference to the provisions of Section 12, 69(1) and 69(2) of the Act and held that change of land use cannot be granted and the petitioner''s case has been rejected. I find no infirmity or irregularity in the order passed by the 2nd respondent. The judgment relied upon by the petitioners (supra) is not applicable to the facts of the present case. The petitioners have not made out a case for grant of change of land use. Accordingly, the petitions fail and are liable to be dismissed.
Accordingly, the writ petitions are dismissed.